Planning Circular 1/2007: planning controls for marine fish farming

ANNEX C

Town and Country Planning (Marine Fish Farming) (Scotland) ORDER 2007

1. Under powers contained in section 26(6C) of the Town and Country Planning (Scotland) Act 1997, Ministers have powers by Order to make such provision as they consider necessary or expedient for the purpose of or in connection with the application of the 1997 Act to marine fish farm development. The Town and Country Planning (Marine Fish Farming) (Scotland) Order 2007 provides amendments to a range of primary and secondary legislation to allow for the consideration of planning applications for new fish farms by planning authorities. The provisions extending statutory planning controls come into force on 1 April 2007 except Article 13 which comes into force on 2 April 2007.

The Articles

Article 1 (Citation, Commencement and Extent)

2. Article 1 provides the date of commencement of the Order as 1 April 2007 with Article 13 coming into force on 2 April. It states that the Order extends to Scotland only.

Article 2 (Interpretation)

3. Article 2 (Interpretation) defines a number of key words and phrases within the context of the Order.

Article 3 (Application of 1997 Act and subordinate legislation)

4. Article 3 of the Order applies Part 2 of the Town and Country Planning (Scotland) Act 1997 (the Act) for the purposes of the preparation of development plans in connection with marine fish farming and disapplies certain provisions of the Act in connection with marine fish farming. Article 3(3) indicates how provisions of enactments and other instruments and documents are to be read in connection with the application of the legislation to marine fish farming. Article 3(4) informs that any offence under the 1997 Act in respect of fish farms developments beyond the ordinary jurisdiction of any sheriff shall be held to have been committed within the sheriffdom nearest to such waters and may be tried and punished accordingly.

Article 4 (National Park Plans)

5. Article 4 makes provision for a National Park Plan to include matters relating to the regulation of marine fish farming in the marine planning zone for which a National Park authority has functions under the Act. It also makes consequential changes to the procedures to be followed in the preparation of the Plan in such a case.

Article 5 (Designation of planning authority boundaries)

6. Article 5 signals that marine waters are divided into marine planning zones. The Order describes the marine planning zones by means of data stored on a CD-Rom. Copies of the CD-Rom are deposited with the planning authorities specified in the Schedule to the Order. A map of the marine planning zones can also be viewed here. Article 5(1) designates the local authority which is to be the planning authority for the purposes of marine fish farming within a particular marine planning zone. Article 5(2) confers on the Loch Lomond and The Trossachs National Park Authority functions under the enactments specified in column 3
of Part 2 of the Schedule to the Order.

Articles 6 and 7 (Amendments to works licence legislation)

7. Articles 6 and 7 amend the Orkney County Council Act 1974 and the Zetland County Council Act 1974 to disapply the provisions relating to works licences in respect of the placing or assembly of equipment in marine waters for the purposes of marine fish farming.

Article 8 (Amendment of the 1997 Act)

8. Article 8(2) amends the definition of fish farming in section 26(6) of the Act to include the farming of sea urchins. Article 8(3) amends section 27 of the Act to extend the meaning of "material operation" to provide that for the purposes of Part 3 of the Act development, which in the case of marine fish farming is to be taken as beginning on the earliest date of the placing or assembly of equipment in marine waters. Article 8(4) enables the grant or refusal of any application by Scottish Ministers under section 31A of the 1997 Act to be placed in the register of the district of an authority to which the application relates.

Article 9 (Amendment of the Town and Country Planning (Enforcement of Control) (No. 2) (Scotland) Regulations 1992)

9. Article 9 amends Regulation 7 of the Town and Country Planning (Enforcement of Control) (No. 2) (Scotland) Regulations 1992 to allow the index of register of enforcement notices etc to enable a person to trace an entry by reference to or a plan of the marine waters to which a notice relates.

Article 10 (Amendment of the Town and Country Planning (General Development Procedure) (Scotland) Order 1992)

10. Article 10 amends the Town and Country Planning (General Development Procedure) (Scotland) Order 1992 in its application for marine fish farming and in particular alters the notification requirements to take account of the special circumstances of marine waters. It also requires the Scottish Ministers to be consulted in relation to proposed marine fish farm development.

Article 11 (Amendment of the Environmental Impact Assessment (Scotland) Regulations 1999)

11. Article 11 modifies these regulations to suit the particular considerations that arise in relation to development in marine waters. The changes made by Article 11 result in the 1999 Regulations containing equivalent provisions as regards the environmental impact assessment of marine fish farms in Scotland as are contained in the Environmental Impact Assessment (Fish Farming in Marine Waters) Regulations 1999.

Article 12 (Amendment of the Environmental Impact Assessment (Fish Farming in Marine Waters) Regulations 1999)

12. Article 12 amends those Regulations so that they no longer apply to marine waters adjacent to Scotland.

Article 13 (Amendment of the Town and Country Planning (Fees for Applications and Deemed Applications) (Scotland) Regulations 2004)

13. Article 13 amends the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 2004 to include fees in relation to fish farm development.

Article 14 (Transitional Arrangements)

14. Article 14 makes transitional and savings provisions in relation to the existing applications for permission to carry out fish farming.

Specific Matters relating to implementation of the Order

Application Fees

15. Amendments to the Town and Country Planning (Fees for Applications and Deemed Applications) (Scotland) Regulations 2004 (the Fees Regulations) are introduced in Article 13.

16. The application fees for marine fish farming comprise: £145 for each 0.1 hectare of the surface area of the marine waters which are to be used in relation to the placement or assembly of any equipment for the purposes of fish farming and £50 for each 0.1 hectare of the sea bed to be used in relation to such development, subject to a maximum of £14,500. The larger fee is to cover the consideration of any surface area equipment such as cages, tanks and longlines and the smaller fee is for consideration of, for example, any moorings and anchor points below the surface which extend beyond the surface area of any equipment. This is to recognise that any equipment below the surface may have implications for recreational users and navigation and this will need to be examined.

17. The fee structure applies to both marine shellfish and finfish farms.

18. Where a planning application has been submitted which comprises both onshore and offshore elements, the attention of planning authorities and developers is drawn to paragraphs 12 and 13 of the Schedule to the Fees Regulations.

Application Forms

19. Where possible the Executive would wish to encourage common requirements from planning authorities. One example of this would be the submission of plans and drawings on the same style of map. The use of appropriately scaled Admiralty charts are encouraged as a base for the application areas. In only limited cases; for example, where the appropriate chart is of insufficient detail, the applicant should also supply an Ordnance Survey map showing the site location and boundary. To allow for appropriate plotting on local authority GIS, the extent of the lease as well as the site area should be submitted with the mid-point of the site included with a defined datum preferably in WGS84.

20. We recommend that positions are quoted in degrees, minutes and decimals of a minute, in the following format:

12034'.56 N, 123045'.67 W ( WGS84).

21. For marine farms, two decimal places of a minute is usually sufficiently precise.

22. We also would encourage planning and developers to contribute to the preparation of either a common application form or guidance note to accompany such a form.

Development Planning

23. Article 3(1) states that Part 2 of the 1997 Act (Development Planning) shall apply to marine waters only for the purposes of the preparation of the development plan for an area in connection with fish farm development.

24. The 2007 Order applies the provisions of the 1997 Act to marine fish farming where appropriate and that includes development plans. Development plans will therefore need to take account of marine fish farming and will provide the policy context for decisions. SPP22 has been issued to provide the policy context for decisions and planning authorities will need to consider what interim policies to prepare in the absence of any policies in the development plan, Where non-statutory framework plans have been prepared, these may provide a basis for policies relating to marine fish farming. They may also provide interim policy guidance until appropriate policies have been adopted. Planning authorities should consider the weight to be attached to these policies in the interim period before they are formally incorporated into the development plan.

25. Where current development plans contain other policies relevant to the development i.e. policies relating to transport, economic development etc, the planning authority will need to consider the relevance of such policies and the weight to be attached to them.

Environmental Impact Assessment

26. The Environmental Impact Assessment (Scotland) Regulations 1999 ( SSI 1999/1) ("1999 Regulations") implement the Council Directives on the assessment of the effects of certain public and private projects on the environment. The Regulations apply to projects which require planning permission in response to an application under Part III of the Town and Country Planning (Scotland) Act 1997. The 1999 Regulations cover, through Schedule 2, developments considered to constitute "intensive fish farming".

27. Article 11 of the 2007 Order amends the 1999 Regulations to make minor changes to those regulations to suit the particular considerations that arise in relation to development in marine waters. Developers, statutory consultees and planning authorities will wish to be aware that there are some differences between the 1999 Regulations and the Environmental Impact Assessment (Fish Farming in Marine Waters) Regulations 1999 which previously implemented the relevant Directives particularly relating to consultation timescales. The main change for developers will be the introduction of a mechanism for the Scottish Ministers to issue a screening direction where the planning authority has issued a screening opinion to the effect that the development is EIA development.

28. The Environmental Impact Assessment (Fish Farming in Marine Waters) Regulations 1999 will remain in force in waters adjacent to Scotland to cover the transitional arrangements set out in article 14 of the 2007 Order. They will apply to the Crown Estate and for applications lodged with them before 1 April 2007 but not approved or rejected by them by that date.

Modifications to Existing Farms

29. While Ministers are responsible for considering applications for the continued operation of an existing farm, applications may be made to planning authorities for a modification before the farm has been reviewed by Ministers. In determining the application for a modification, it may be that planning authorities will need to consider the whole farm before they can reach a decision on the modification. This assessment will prove useful to Ministers and will be taken into account in their consideration of the farm when it is reviewed.

Neighbour Notification

30. Due to the nature of the marine environment, usual neighbour notification arrangements have been amended. Under provisions in Article 10 which introduce article 22B(4) into the Town and Country Planning (General Development Procedure) (Scotland) Order 1992, as amended, (the GDPO) the planning authority shall publicise the application through a notice in a local newspaper circulating in the district of the planning authority. The nature of
the form is set out in Schedule 8 of the GDPO. Provisions allowing the planning authority to recoup the cost of the notice are already contained in article 12(8) of the GDPO.

Outline Planning Permission

31. Article 3 of the 2007 Order disapplies certain provisions of the Act in connection with marine fish farming. Section 59 (Outline Planning Permission) does not apply in connection with marine fish farm development. It is considered that sufficient information, for example on the details of the design, will not be available at the outline stage and that a full application is therefore required.

Permitted Development Rights

32. No additional Permitted Development Rights ( PDRs) have been introduced for marine fish farms through provisions in the 2007 Order. A research project has been commissioned and as part of this project the scope for specific permitted development rights for fish farms is being examined.

Planning Conditions

33. Section 41(1)(b) of the 1997 Act gives power to impose conditions requiring that a use be discontinued or that buildings or works be removed at the end of a specified period. It is the decision-maker to consider what if any conditions are required to be attached to a planning permission. In the terrestrial planning system, it has not been normal practice for conditions providing a temporary permission. The Executive wishes to see this practice retained.

34. Attention is therefore drawn to guidance provided in Circular 4/1998: The Use of Conditions in Planning Permissions particularly in Annex A relating to the use of conditions relating to Temporary Permissions. Circular 4/1998 states that the reason for granting a temporary permission can never be that a time-limit is necessary because of the effect of the development on the amenity of the area. Where such objections to a development arise they should, if necessary, be met instead by conditions whose requirements will safeguard amenity.

35. It continues by noting that these considerations mean that a temporary permission will normally only be appropriate either where the applicant himself proposes temporary development or when a trial run is needed in order to assess the effect of the development on the area.

36. With regard to a "trial run", where there is insufficient evidence to enable the authority to be sure of its effect on amenity, it might be appropriate to grant a temporary permission in order to give the development a trial run, provided that such a permission would be reasonable having regard to the capital expenditure necessary to carry out the development. However, a temporary permission would not be justified merely because, for example, the development is acceptable in a certain location, but the character of its management or the species to be stocked may change.

Repeals of legislation affecting works licences

37. The Orkney County Council Act 1974 and the Zetland County Council Act 1974 give powers to local authorities to authorise development through "works licences" arrangements. These have been amended through Articles 6 and 7 of the 2007 Order. These Acts can no longer be used to grant works licences for fish farm development in marine waters.

38. The power to grant works licences for other types of works through these Acts is not affected.

Single applications

39. The Executive recognises that there should be scope for the terrestrial and marine elements of a fish farm development to be considered together where that is reasonable. In order to facilitate this, Article 10(4) of the 2007 Order introduces Article 22B(6) into the GDPO. It notes that where an application for planning permission relates in part to fish farm development and in part to other development, the modifications specified in this article shall apply only for the purposes of that application to the extent that it relates to fish farm development. In practice, where a single application is requested by the developer, the usual neighbour notification arrangements for a terrestrial planning application are augmented by those for the marine fish farm element.

40. It will be for the decision-maker to consider whether a single application is acceptable in each circumstance. There should be scope at any pre-application consultation for this to be considered. Factors in such a consideration may include:

• possible distance between on and off-shore facilities;
• possible confusion over different EIA criteria between the two elements; and
• shore facilities serving more than one site.

Statutory Consultees

41. A number of changes are made in the range and scope of statutory consultees in the GDPO, as amended. These are noted below.

District Salmon Fishery Boards

42. Article 15(1)(e) of the GDPO provides for a district salmon fishery board to be a statutory consultee for fish farming. This provision applies in those areas designated to the planning authority for marine fish farming purposes.

Scottish Environment Protection Agency

43. Article 15(1)(h)(ii)(aa) of the GDPO provides for SEPA to be a statutory consultee where a development consists of or includes fish farming applies to marine fish farming in designated areas.

Scottish Natural Heritage

44. Article 15(1)(d) of the GDPO provides for SNH to be a statutory consultee in certain circumstances, in particular, where the development may affect an area of special interest notified to the planning authority by them in accordance with section 28 of the Wildlife and Countryside Act 1981. SNH will retain these roles for marine fish farming in designated marine areas.

Scottish Ministers

45. In new article 15(1)(j)(viii), introduced by article 10(3) of the 2007 Order, Scottish Ministers are to be consulted on all applications for marine fish farming. There are two particular additional aspects which are relevant to Ministers' considerations of planning applications. The Fisheries Research Service ( FRS) provide Ministers with advice on fish health and welfare aspects for fish farm applications. In addition, they consider the impact of developments on the whole loch environment, rather than on a site specific basis. They also consider the impacts of a development on other fisheries, including wild fish interests. The advice received from FRS is outside the locus of both SEPA and SNH. In addition we recognise that there is a role for Ministers in considering the potential impacts on inshore fisheries of gaining access to known fishing grounds and navigational channels.

Secretary of State

46. Where there are likely impacts on sites designated under the Protection of Military Remains Act 1986, planning authorities should contact the Ministry of Defence at the address below. The sites are identified in The Protection of Military Remains Act 1986 (Designation of Vessels and Controlled Sites) Order 2006 ( SI 2006/2616).

Peter MacDonald
CNS Heritage
Ministry of Defence
Victory Building
PP72
HM Naval Base
Portsmouth PO1 3LS

Tel 02392 727326

47. Associated notification arrangements are to be found in the Town and Country Planning (Notification of Applications Affecting Controlled Sites)(Scotland) Direction 2007.

Transitional Arrangements

48. Transitional Arrangements have been put in place for those fish farms where:

• an application has been made to the Crown Estate under the interim scheme or to either of the Northern isles councils under works licence legislation before 1 April 2007 and where the consideration of the application has to be completed; and
• where a development consent or works licence have been granted prior to 1 April 2007, yet the development has not fully implemented.

49. In cases where an application for a works licence has been submitted to Shetland Island Council or Orkney Island Council before the 1 April 2007 but not considered by them by that date, the Councils are to treat the application as if it was an application for planning permission.